RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 29 JUNE 2006
      DOCKET NUMBER:         AR20050012996


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Richard J. Eisenbart          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. Chester Damian                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reenlistment Eligibility (RE) Code of
RE-4 on his DD Form 214 be changed to allow re-entry into the Reserve
Component.

2.  The applicant states, in effect, that he desires to reenlist but is
prevented from doing so because of his RE Code.  He also states that he is
not sure why he has this on his records.  He indicates that he left the
Army after having just received non-judicial punishment (an Article 15),
and that he appealed the matter.  He also indicates that he is 45 years of
age, and this is the last year he can join the Reserves.  He states that
the reason he has waited so long was that he had to get his life in order
and because of the war he wants to serve again as soon as possible.

3.  The applicant provides a self authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 29 August 1986.  The application submitted in this case is
dated 11 August 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  He enlisted in the U.S Army Delayed Entry Program on 13 November 1979.
He entered onto active duty into Regular Army service on 8 January 1980,
for a period of 4 years service, with the following enlistment options:
training in military occupational specialty (MOS) 16E (Hawk Fire Control
Crew Member), assignment to a U.S. Army Special Unit-Europe, and a cash
enlistment bonus of $ 2,500.00.

4.  The applicant attended and successfully completed One Station Unit
Training (OSUT) at Fort Bliss, Texas on 30 May 1980.  He was then
transferred to Germany reporting on 24 June 1980, where he served until 14
June 1983, when he was transferred to Fort Riley, Kansas.  He was advanced
to the pay grade of E-5 on 6 December 1983.  On 6 January 1984 the
applicant reenlisted for a period of 3 years, with a reenlistment option of
continued assignment in MOS 16E.  He was transferred to Fort Bliss, Texas
on 16 June 1984.

5.  During the applicant’s first enlistment, the available records indicate
that his duty performance was extremely proficient and commendable.  He
successfully completed the Basic Leadership Course as a Distinguished
Graduate, and the Primary Leadership Development Course.  During this
period of service he was also awarded the Army Achievement Medal, the Army
Good Conduct Medal, and was cited with a Certificate of Achievement.  The
available records do not indicate the exact date of his marriage, but do
indicate that he was married during his second assignment to Fort Bliss,
Texas, as evidenced on the applicants DD Form 93 (Record of Emergency Data
- dated 6 May 1986).

6.  In December, 1985, the applicant submitted a Declination of Continued
Service Statement (DA Form 4991-R) in lieu of extending his remaining
service obligation requirement for an overseas assignment to Germany.  The
Department of the Army (DA) Form 4991-R indicates that the applicant was
properly counseled by his senior leadership as to the possible adverse
career consequences of his refusal to take necessary action to meet the
length-of-service requirement for an overseas assignment.  The DA Form 4991-
R was signed and processed by proper authority on or about 24 December
1985.

7.  It is prudent to note that the aforementioned DA Form 4991-R indicates
award of RE Code 3A, as one of the potential adverse career consequences of
his refusal to take necessary action to meet the length-of-service
requirement.  Army Regulation (AR) 601-210 (Regular Army and Army Reserve
Enlistment Program), Chapter 3 (Enlistment in the Regular Army and Army
Reserve for Prior-Service Applicants), Table 3-1 (US Army reentry
eligibility codes) states:  “RE-3A – Applies to:  Soldiers separated prior
to the effective date (16 May 2005) of this regulation but did not meet
reentry criteria at time of separation.  Eligibility:  Ineligible unless a
(Department of the Army) waiver is granted”.

8.  Additionally, the available records do not indicate the exact date, but
reference is made by the applicant, in a self authored request for early
release from military service, as being cited by military authorities for
spousal abuse sometime in January, 1986.  This same request indicates that
the applicant was directed to attend an anger control class in June 1986.
There is no indication in the available records of the applicant’s actual
attendance to this course.  The applicant indicates in the request that he
was also apprehended and confined (for one day) by civilian authorities for
spousal abuse during this same period.  The record does indicate that he
was ordered by his Company Commander “to stay away from his apartment”.
9.  On 24 April 1986, the applicant's commander initiated a “Local” Bar to
Reenlistment Certificate (DA Form 4126-R).  The commander cited as the
basis for his recommendation a Record of Non-Payment of Just Debts on the
part of the applicant; three instances of writing checks without sufficient
funds; an inability to handle his personal life; and an administrative
release from the Basic NCO Course (BNCOC) for hardship reasons because of
his financial situation (dated 31 July 1986).

10.  On 13 August 1986 the applicant submitted a written request for early
release from military service through his command channels.  He cited his
marital and financial instability and the inability to overcome the Bar to
Reenlistment as justification for approval of his request.  The applicant’s
request for early release was approved by his battalion commander on 14
August 1986.

11.  Additionally, on 14 August 1986, Non-Judicial Punishment (NJP) was
imposed against the applicant for disobeying a lawful order, in that he
failed to “stay away from his apartment” as ordered by his company
commander.  His punishment consisted of a reduction to pay grade E4, a
forfeiture of pay, 30 days of restriction and 30 days of extra duty.

12.  Accordingly, he was honorably discharged in the pay grade of E-4 on
29 August 1986, under the provisions of AR 635-200, paragraph 16-5b, due to
a locally imposed bar to reenlistment.  He had served 6 years, 7 months and

22 days of total active federal service.  He was issued a Certificate of
Release or Discharge from Active Duty (DD Form 214) with an RE-4
reenlistment code.

13.  AR 601-280, in effect at the time, prescribes the eligibility criteria
and options available in the Army Reenlistment Program.  Chapter 6 of that
regulation provides for barring from reenlistment individuals whose
continued active duty is not in the best interest of the military service.
Examples of rationale for reenlistment disqualification include, but are
not limited to, AWOL, indebtedness, recurrent non-judicial punishment, slow
promotion progression, no demonstrated potential for future service, and
substandard performance of duties.

14.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  AR 601-210 covers eligibility
criteria, policies, and procedures for enlistment processing into the
Regular Army and the United States Army Reserve.  Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for
enlistment.  That chapter includes a list of armed forces RE codes.

15.  A RE Code of RE-3 applies to persons not qualified for continued Army
service (the Soldier is ineligible for or otherwise denied immediate
reenlistment), but the disqualification is waivable.  Persons desiring to
obtain a waiver may seek assistance from their nearest recruiting office.
A waiting period of 2 years from separation is required before a waiver may
be submitted.  The needs of the service at the time is usually one of the
determining factors that affect the outcome of waiver requests.

16.  A RE Code of RE-4 indicates that a person is not qualified for
continued Army service by virtue of being separated from the service with a
non-waivable disqualification such as a Department of the Army imposed bar
to reenlistment.

17.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 16 covers the discharges caused by changes in
service obligations.  Paragraph 16-5 applies to personnel denied
reenlistment and provides that Soldiers who receive “Department of the
Army” imposed or “Locally” imposed bars to reenlistment, and who perceive
that they will be unable to overcome the bar may apply for immediate
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s bar to reenlistment was imposed in compliance with the
applicable regulation with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The applicant’s discharge was accomplished in accordance with
applicable regulations with no indication of any violations of the
applicant’s rights.

3.  However, the applicant was issued a RE Code of "4" which is indicative
of him having a Department of the Army imposed bar to reenlistment, which
was not so in the applicant's case.  Accordingly, he should have been
issued a RE Code of "3A" and therefore, it would be in the interest of
justice to do so at this time.  It would be fair to assume the RE Code
awarded the applicant on his DD Form 214 was an administrative error.

4.  Although the applicant will require a waiver to enlist with an RE Code
of "3A", the needs of the service have always been a determining factor
even in cases where prior service enlistees have a more favorable RE Code.
Therefore, it is incumbent on the services to determine if they want to
grant the applicant a waiver based on the needs of the particular service
at the time.

5.  In light of the fact that the United States Army and it’s Reserve
Components have recently raised the maximum age for enlistment and/or
reenlistment, the applicant is encouraged to contact local recruiters
periodically to determine the Service's needs.  His desire to serve his
country and the United States Army are to be commended.

BOARD VOTE:

      LS___      __RS _        _CD_  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing that he was issued a RE Code
of 3A in lieu of the RE Code 4 currently reflected on his DD Form 214.





            ____ Linda Simmons   ____
                    CHAIRPERSON
INDEX

|CASE ID                 |AR20050012996                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19860722                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 16, PARA 16-5b           |
|DISCHARGE REASON        |LOCAL BAR TO REENLISTMENT               |
|BOARD DECISION          |(GRANT FULL RELIEF)                     |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |4/re code upgrade                       |
|1.100.0300              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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